Obscenity and Pornography: Behavioral Aspects

If the findings concerning violent and degrading pornography have merit, then there is a mismatch between law and reality, for the vast majority of potentially harmful material is not obscene, and therefore protected by the First Amendment. Yet the evidence concerning harmful effects is too speculative to merit a new exception to freedom of speech. In 1997 the Supreme Court struck down the national Communications Decency Act, a measure designed to protect children from exposure to pornography on the Internet, because of a host of free speech concerns that highlight the difficulty of enforcement posed by the First Amendment (Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)). In addition, even the enforcement of traditional obscenity law has proved difficult to administer for reasons related to what legal scholar Herbert Packer has called the "limits of the legal sanction." The most important reasons for the underenforcement of obscenity law include: (1) low priority given to obscenity cases by prosecutors with limited resources; (2) relative public tolerance of freedom of choice when it comes to what can be portrayed as a "victimless crime"; (3) confusion over the key terms of obscenity law make juries reluctant to find defendants guilty beyond a reasonable doubt; (4) gifted defense attorneys know how to use the law and take advantage of jury sympathies and confusion.

Given the difficulties of enforcing laws prohibiting hard core pornography (obscenity), society should think carefully about criminalizing other forms of pornography as well, especially given dangers such efforts present to freedom of speech.